When parents split up - FAQs on residency

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More than 120,000 families with dependent children separated in 2014. Roughly half of those who split are married couples and the other half were previously cohabiting. Around one third of all children aged 16 and under were not living with both of their birth parents.*

So although usually distressing, separation is not uncommon. Coram Children's Legal Centre answers some FAQs about residency, which is the legal term for where children live after their parents have split up. 

Q: We have separated. At the moment our children are spending equal amounts of time with both of us. Can we make a legal agreement for this to continue? 

A: If this is an amicable agreement, there’s no need at this stage to legalise the arrangements - though it will require some level of trust and co-operation between you as the parents.

The only way to legalise this arrangement is through the Family Court, by applying for a Child Arrangements Order. Even if you have an agreement drawn up and witnessed by a solicitor, this won’t be legally binding. The only way to legalise such an arrangement is by a Child Arrangements Order. The Courts do consider what is called the “no order principle” and will not make an order if it is not necessary to do so.  It is also a requirement to attend mediation before applying to the court.

Q: My son and daughter have lived with me since I split up with their father. My ex now says it's his turn and seems certain that the courts will back him up. My children are aged two and six. 

A: Assuming that the current arrangements suit the children and they’re not at risk in any way, it's unlikely that the court would reverse the residence arrangements unless there is good reason. The court must make its decisions on what it thinks is in the best interests of the children. One of the considerations is how the change of circumstances would affect the children.

Q: I have a 12-year-old niece who would like to live with me permanently. At the moment, she is living with me under a temporary arrangement. We feel certain that her mum will not agree. Is there anything we can do?

A: You could apply to the court for a Child Arrangements order. You would need leave (permission of the Court) to do so. The court's decision must be based on what is in your niece's best interests.

Q: I have a 15-year-old daughter and a residence order in my favour. She has decided to move out of the family home and move in with her friends. I don’t think this is a suitable arrangement and I want her home. Can I rely on the residence order to return her home?

A: It is very difficult when a child reaches the age of 15 because they’re likely to be considered competent to decide where they want to live. The residence order will probably expire when your daughter reaches the age of 16 anyway, unless it states in the order that it should expire when she turns 18.

If you are concerned that the place she is living in is not suitable or that she is at risk of harm then you should ask social services to get involved. The police can also conduct a safe and well check. 

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